TMI Blog2018 (4) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... that imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. - Decided in favour of assessee. - ITA No.61/Kol/2017 - - - Dated:- 4-4-2018 - Shri N.V.Vasudevan, Judicial Member and Shri Waseem Ahmed, Accountant Member For The Appellant : Parnashree Banerjee, Advocate For The Respondent : Shri G. Hangshing CIT-DR ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-6, Kolkata dated 18.10.2016. Assessment was framed by ITO Ward-5(3), Kolkata u/s 143(3)/263/143(3)/147 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 26.09.2014 for asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be concealment or there can be furnishing of inaccurate particulars and both the instances cannot occur simultaneously. 5. That, the Ld. CIT(A) erred in having upheld the penalty on the addition of ₹ 9,69,00,702/- made by the A.O. under the deeming provisions of sec.68 and confirmed by the CIT(A) without appreciating that authentic evidences of share application money received by the assessee and identity creditworthiness of the share applicants and genuineness of the transactions are already on record and hence there cannot be any concealment of particulars of income so as to attract penalty u/s.271(1)(c). 6. That, without any prejudice to the above, the Ld. CIT(A) fell in error in having alleged while upholding the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, made in the course of assessment proceedings the AO initiated penalty proceedings u/s 271(1)(c) of the Act. The AO imposed penalty holding that the assessee has violated the provision of law enumerated in Section 271(1)(c) of the Act by concealing particulars of income furnishing inaccurate particulars of income and imposed penalty u/s 271(1)(c) of the Act. Subsequently the ld. CIT(A) confirmed the order of AO. Hence this appeal by the assessee is filed before the Tribunal. 4. The ld. Counsel for the assessee submitted before us that the show cause notice issued u/s 274 of the Act before imposing penalty does not contain the specific charge against the assessee namely as to whether the assessee was guilty of having conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay High Court in the case of CIT vs Shri Samson Perinchery in ITA No.1154 of 2014 dated 05.01.2017 wherein the Hon ble Bombay High Court following the decision of the Hon ble Karnataka High Court in the case of Manjunatha Cotton and Ginning Factory (supra) came to the conclusion that imposition of penalty on defective show cause notice without specifying the charge against the assessee cannot be sustained. Our attention was also drawn to the decision of Co-ordinate Bench of this Tribunal in the case of Suvaprasanna Bhattacharya vs ACIT in ITA No.1303/Kol/2010 dated 06.11.2015 wherein identical proposition has been followed by the Tribunal. On the other hand Ld. DR for the Revenue before us placed reliance on several case laws as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er observed that 16. It is not in dispute that a reasonable opportunity of being heard in the matter as required by Section 274 of the said Act was given to the assessee before imposing the penalty by the I.T. Officer. Further, the ITAT Mumbai Bench in the case of Earthmoving Equipment Services Corporation v.s DCIT 22(2) Mumbai (2017) 84 taxmann.com 51 opined that after perusing the ratio of the judgment rendered in Manjunatha Cotton and Ginning Factory we find that the assessee s appeal was allowed by the Hon'ble High Court after considering the muntiple factors and not solely on the basis of defect in Notice u/s. 274. Therefore we are of the opinion that the penalty could not be deleted merely on the basis of defect pointed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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